An individual was indicted for breach of computer security when he obtained credit
information from a credit bureau's computerized files without the permission of the
persons about whom the information was compiled. The complainants in the indictment are
members of the district attorney's office in the county of prosecution.

Question Presented

May a lawyer member of the district attorney's office prosecute a criminal complaint
where the complainants are also lawyer members of the in the county of prosecution?

Discussion

DR 5-101(B) and DR 5-102(A) state that a lawyer shall
not accept employment when he learns or it becomes obvious that a lawyer in his firm will,
or ought to, be called as a witness. Opinion 399
(February 1981) held that these restrictions should also apply to a district attorney's
office and to all those who practice in the same office.

Given the situation described above, it is clear that DR 5-101(B) does indeed apply and
it then becomes necessary to examine the exceptions listed under DR 5-101(B) to see if any
are applicable. This was well demonstrated in Opinion 430 (June
1986) where it was held that another attorney in the district attorney's office would be
allowed to testify if the testimony given would fall under one of the four enumerated
exceptions. In the letter requesting this opinion it is suggested that the complainant's
testimony will be uncontested and/or simply a matter of formality falling under exceptions
(1) or (2) of DR 5-101(B). The testimony of the complainants would simply be that they did
not give the accused permission as required by law to check their credit files. As simple
as this testimony may seem, it is still difficult to tell prior to trial whether or not
this testimony would remain uncontested. In fact, it may be at the very heart of the
matter at issue making the testimony certainly not a formality and most likely not
uncontested.

It was also suggested that to bring in outside counsel to prosecute this case would
work a great hardship on the client and the people of Texas (DR 5-101(B)(4)). While the
hardship should not be disregarded, it cannot be held to override the defendant's right to
a fair trial. In State v. Whitworth, No. 47978 (Mo. Ct. App. Eastern Dist. Dec. 11,
1984), the court held that a criminal defendant's right to a fair trial was prejudiced
when one member of the state of a county prosecutor's office argued the case against him
and another provided critical testimony in that case. The result, said the court, was
unfair not only to the defendant but also to the jury. The prosecutor's office should have
sought a special prosecutor to try the case.

A prosecutor, as any other attorney, should avoid participating in any case where an
implication of partiality might cast a shadow on the integrity of the office. If, in the
case at hand, prosecution is pursued by counsel within the district attorney's office,
such a shadow would most certainly exist.

Conclusion

The prosecuting attorney in this case, in order to abide by DR 5-101(B) and DR 5-102(A) should request the court to appoint a new
counsel for the state. This would be in complete compliance with DR 5-101(B) and also insure the defendant a fair trial
while protecting the integrity of the district attorney's office from the shadow of
partiality.